Generally, sport
coaches and instructors owe a legal duty to exercise ordinary reasonable care
to protect participants from unassumed, concealed or unreasonably increased
risks.Participants, on the other
hand, assume the risk of injury associated with the obvious, unavoidable, and
inherent risks in a sport, or any physical activity. When a particular activity
involves coaching or instruction, the participant also assumes the risk of
injury associated with challenging instruction.

Accordingly, a coach or instructor who asks a participant to
take on a challenge in order to better his or her skills will not necessarily
be liable for injuries resulting from the participant’s failure to meet that
challenge.On the contrary, unless there is evidence of intentional
misconduct, recklessness, or other egregious risk-increasing conduct on the
part of the coach/instructor, the participant assumes the risk of injury
resulting from reasonable challenges which, in hindsight, prove to have been
beyond the participant’s abilities.However, in the Koffman case
described herein, the court found evidence
that the coach’s use of physical force to demonstrate a technique unreasonably
increased the risk of injury to the participant.

SPORT RISK?

In the case of Koffman
v. Garnett, 574 S.E.2d 258 (Va. 2003), the Virginia supreme court
considered whether an injured football
player had alleged sufficient facts to establish a claim of gross negligence,
as well as assault and battery, against his coach.The facts of the case were as follows:

In the fall of 2000, Andrew W. Koffman,
a 13-year old middle school student
at a public school in BotetourtCounty,
began participating on the school's football team. It was Andy's first season playing organized football,
and he was positioned as a third-string defensive player. James Garnett was
employed by the Botetourt County School Board as an assistant coach for the
football team and was responsible for the supervision, training and instruction
of the team's defensive players.

The team lost its first game of the season. Garnett was upset by the defensive
players' inadequate tackling in that game and became further displeased by what
he perceived as inadequate tackling during the first practice following the
loss.

Garnett ordered Andy to hold a football
and "stand upright and motionless" so that Garnett could explain the
proper tackling technique to the defensive players. Then Garnett, without
further warning, thrust his arms around Andy's body, lifted him "off his
feet by two feet or more," and "slammed" him to the ground. Andy
weighed 144 pounds, while Garnett weighed approximately 260 pounds. The
force of the tackle broke the humerus
bone in Andy's left arm. During prior
practices, no coach had used physical force to instruct players on rules or
techniques of playing football.

Andy and his parents (collectively "the Koffmans")
alleged that “Andy was injured as a result of Garnett's simple and gross
negligence and intentional acts of assault and battery.”In response, Garnett argued that the Koffmans
had not alleged “sufficient facts to support a lack of consent to the tackling
demonstration and, therefore, did not plead causes of action for either gross
negligence, assault, or battery.”

The trial court agreed with Garnett and dismissed the
case.In so doing, the trial court held
that, under state law, “Garnett, as a
school board employee, was entitled to sovereign immunity for acts of simple
negligence.” Further, the trial court found the facts alleged by the
Koffmans were “insufficient to state causes of action for gross negligence,
assault, or battery because the instruction and playing of football are
‘inherently dangerous and always potentially violent’."The Koffmans appealed to the state supreme
court.

GROSS NEGLIGENCE?

As defined by the state supreme court, “gross
negligence” involves "that degree of negligence which shows indifference
to others as constitutes an utter disregard of prudence amounting to a complete
of the safety of another.”Further,
to establish gross negligence, the court found the conduct involved “must be
such a degree of negligence as would shock fair minded people although
something less than willful recklessness."Applying these principles to the facts of the case, the state supreme
court found the Koffmans had alleged sufficient facts which, if proven at
trial, would support a claim for gross negligence.

The disparity in size between Garnett and Andy was obvious to Garnett. Because
of his authority as a coach, Garnett must have anticipated that Andy would
comply with his instructions to stand in a non-defensive, upright, and
motionless position. Under these circumstances, Garnett proceeded to
aggressively tackle the much smaller, inexperienced student football player, by
lifting him more than two feet from the ground and slamming him into the turf.
According to the Koffmans' allegations, no coach had tackled any player
previously so there was no reason for Andy to expect to be tackled by Garnett,
nor was Andy warned of the impending tackle or of the force Garnett would use.

As the trial court observed, receiving
an injury while participating in a tackling demonstration may be part of
the sport. The facts alleged in this case, however, go beyond the circumstances
of simply being tackled in the course of participating in organized football.

Here Garnett's knowledge of his greater
size and experience, his instruction implying that Andy was not to take any
action to defend himself from the force of a tackle, the force he used during
the tackle, and Garnett's previous practice of not personally using force to
demonstrate or teach football technique could lead a reasonable person to conclude that, in this instance, Garnett's actions
were imprudent and were taken in utter disregard for the safety of the player
involved.

ASSAULT & BATTERY?

The state supreme court then considered whether the Koffmans
had alleged sufficient facts to support their claims of assault and
battery.As noted by the court, assault
and battery, although closely related, constitute “two independent torts.”

The tort of assault consists of an act
intended to cause either harmful or offensive contact with another person or
apprehension of such contact, and that creates in that other person's mind a
reasonable apprehension of an imminent battery. Restatement (Second) of Torts §
21 (1965)

The tort of battery is an unwanted
touching which is neither consented to, excused, nor justified.

Although these two torts "go
together like ham and eggs," the difference between them is "that
between physical contact and the mere apprehension of it. One may exist without
the other." W. Page Keeton, Prosser and Keeton on Torts § 10 at 46.

In this particular instance, the state supreme court found the Koffmans'
assault claim did “not include an allegation that Andy had any apprehension of
an immediate battery.”Since “Andy had
no warning of an imminent forceful tackle by Garnett” and the alleged battery
“was in progress… in the very short period of time that it took the coach to
lift Andy into the air and throw him violently to the ground," the state
supreme court found insufficient evidence “as a matter of law to establish a
cause of action for civil assault.”

On the other hand, the supreme court found the trial court
had erred in holding that the Koffmans' allegations were “insufficient as a
matter of law to establish a claim for battery.”

The Koffmans pled that Andy consented to physical contact with
players "of like age and experience" and that neither Andy nor his
parents expected or consented to his "participation in aggressive contact
tackling by the adult coaches." Further, the Koffmans pled that, in
the past, coaches had not tackled players as a method of instruction. Garnett
asserts that, by consenting to play football, Andy consented to be tackled, by
either other football players or by the coaches.

Whether Andy consented to be tackled by Garnett in the manner alleged was a
matter of fact. Based on the allegations in the Koffmans' second amended
motion for judgment, reasonable persons could disagree on whether Andy gave
such consent.

Having found the Koffmans had alleged sufficient facts “to
establish a cause of action for the tort of battery,” as well as claims of
gross negligence, the state supreme court reversed the trial court’s judgment
in favor of Garnett and remanded (i.e., sent back] the case to the trial court
for “further proceedings consistent with this opinion.”

DISSENTING OPINION

While agreeing with the majority opinion that the Koffmans
had alleged sufficient facts to proceed with a claim of gross negligence, the
dissenting judge in this case found insufficient evidence to support a claim
for battery.In so doing, the dissenting
judge reminded the majority “acts that might give rise to a battery on a city
street will not do so in the context of the sport of football.”

A football coach cannot be expected to
extract from the game the body clashes that cause bruises, jolts and hard
falls. Instead, a coach should ensure that players are able to withstand the
shocks, blows and other rough treatment with which they would meet in actual
play by making certain that players are in sound physical condition, are issued
proper protective equipment, and are taught and shown how to handle themselves
while in play. The instruction on how to handle themselves during a game
should include demonstrations of proper tackling techniques.

Moreover, the dissenting judge noted that “[t]ackling and
instruction on proper tackling techniques are aspects of the sport of football
to which a player consents when making a decision to participate in the sport.”

Absent fraud, consent is generally a
defense to an alleged battery. Restatement (Second) of Torts § 13, cmt. d
(1965).In the context of this case,
taking part in a game manifests a willingness to submit to such bodily contacts
or restrictions of liberty as are permitted by its rules or usages. Restatement
(Second) of Torts § 50, cmt. b (1965).

In so doing, however, the dissenting judge acknowledged that
“one responsibility of a football coach is to minimize the possibility that
players will sustain ‘something more than slight injury’ while playing the
sport.”

[P]articipating in a particular sport
does not manifest consent to contacts which are prohibited by rules or usages
of the game if such rules or usages are designed to protect the participants
and not merely to secure the better playing of the game as a test of skill.
Restatement (Second) of Torts § 50, cmt. b (1965).

In this particular instance, however, the dissenting judge
found no evidence that “the tackle itself violated any rule or usage of the
sport of football.”On the contrary,
since Andy could have been “tackled by a larger, physically stronger, and more
experienced player either during a game or practice,” the dissenting judge
found the alleged battery was still within the participant’s scope of consent
to bodily contacts permitted by the rules and usages of football.